Attorney General does not address question at heart of nursing home controversy

On Tuesday the Attorney General sent a 30 page report to Government dealing with the controversies over people’s entitlement to nursing home care and other matters.

The Attorney General says he was asked to review “charges levied for the provision of nursing home care” and to “provide an account of the litigation management strategy adopted by the State”. But the controversy is not about charges levied by the State. It is about whether people, who had to pay for private nursing home care because there were not enough public nursing home places available, should have their private care costs reimbursed by the State.

The Attorney General accepts that people with medical cards had a legal right to free nursing home care up to 2005. The health board practice of charging medical card holders for long-stay care in public institutions was illegal. Ultimately, these charges were refunded at a cost of about €450 million. But those who ended up in private nursing homes, because a public bed was not available, were not compensated. The Attorney General does not directly address the question of whether the health boards, prior to 2005, should have borne the costs of private care for medical card holders who could not avail of public care.

Instead, and rather bizarrely, the Attorney General focuses on a different issue: whether the State has any liability in the case of people who, before 2005, went into private care as a matter of choice. The report tells the Government: “Paying for the choice by citizens to take up beds in private nursing homes was, put simply, a benefit that the State never agreed to provide for its citizens . . .” and “at no stage did the Oireachtas ever legislate . . . to make private nursing home care free to all persons in nursing homes of their own choice.” This is gratuitous and irrelevant information in the context of the present controversy. One must wonder if this is a deliberate distraction from the real issue.

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We know that the State has settled some legal cases taken by or on behalf of people who had to pay for private care where public care was not provided. But we don’t know the details of these settlements. In 2013 then ombudsman Emily O’Reilly investigated two such cases. The ombudsman found that the HSE was obliged to provide long-stay care for the patients involved but had failed to do so. She found that the two patients concerned (and their families) had incurred costs which they should not have had to incur. She recommended payments of €130,000 and €38,000, respectively. The HSE made these payments though it disagreed with the finding on which the payments were based.

At this stage, the controversy is more about the State’s handling of legal claims for compensation than about the payment of compensation. We know that the State’s strategy in defending these cases is a continuation of a strategy followed over several decades in cases involving people from vulnerable groups. The details of this strategy are now well known and have been heavily criticised. The main criticism is that the State, in defending its position, disregards the fact that the litigants are from a vulnerable group in society and adopts the type of hostile and aggressive behaviour which is often a feature of litigation generally. And perhaps most importantly, the strategy is designed to ensure that the key legal issue about entitlement is never decided by the courts.

Given that the Taoiseach had already described the litigation strategy as legitimate, it should not surprise us that the Attorney General finds the legal advice provided by his predecessors, “in respect of the litigation concerning charges levied for private nursing home care”, to have been “sound, accurate and appropriate”. And again, the Attorney General confuses matters with the implication that the State imposed charges on people in private nursing homes.

The Attorney General asserts that the State, in defending litigation, “always does so in the public interest” and the public interest here requires consideration of the taxpayer “who is called upon to fund every new benefit agitated for”. In effect, the Attorney General sets up the proposition that the litigants are seeking a new benefit – the right to have private nursing home costs, freely entered into by the litigants, refunded by the State. If that were the case, of course the position of the taxpayer is relevant. But that is not the case. The issue is simple and clear: did the Health Act 1970 require health boards to meet the costs incurred by people in need of nursing home care in circumstances where a public bed was not available?

There are many considerations which suggest that the State’s litigation strategy is not in the public interest. Is it in the public interest to seek to ensure that the fundamental legal issue – which affected thousands of people up to 2005 – is never decided by the courts? Is it in the public interest to operate a strategy which provides compensation to a tiny minority of affected people – those with the wherewithal to take legal action – while leaving the vast majority in the cold? Is it in the public interest for the State to take a hostile and aggressive legal approach in dealing with litigants who belong to a vulnerable group in society and who are seeking to have a legal entitlement enforced?

There has to be a better way to resolve these kinds of issues. As the guardian of the public interest, one might reasonably expect the Attorney General to be concerned with finding a fairer way forward. On the evidence of yesterday’s report, the Attorney General appears to be acting simply as another partisan lawyer.

Fintan Butler worked for a number of years in the Office of the Ombudsman